On 05/07/2018 EMILY SUE MOORE filed a Personal Injury - Motor Vehicle lawsuit against CITY OF BEVERLY HILLS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are KRISTIN S. ESCALANTE and MARK A. BORENSTEIN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
KRISTIN S. ESCALANTE
MARK A. BORENSTEIN
MOORE EMILY SUE
BEVERLY HILLS CITY OF
DOES 1 TO 10
NEIMAN MARCUS GROUP LLC
CITY OF BEVERLY HILLS
ASADI M. AZHAR
ASADI MOHAMMAD AZHAR ESQ.
SHERGILL JUSTIN S
MANNING & KASS
NEBENZAHL MICHAEL RALPH
NEBENZAHL MICHAEL RALPH ESQ.
SHERGILL JUSTIN S ESQ.
9/10/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)
2/20/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE LINDA LEE (CSR 13568)
2/20/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT CIT...) OF 02/20/2020
3/11/2020: Ex Parte Application - EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL DATE (STIPULATED AND UNOPPOSED)
3/11/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION - STIPULATED AND UNOPPOSED EX...)
3/18/2020: Notice - NOTICE OF RULING RE DEFENDANT CITY OF BEVERLY HILLS' EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL
8/30/2019: Request for Refund / Order
9/18/2019: Amended Complaint - AMENDED COMPLAINT 1ST - (STRICKEN - SEE MINUTE ORDER ISSUED 09/27/2019)
9/27/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER ON 09/18/2019, A DOCUMENT ENTITLED FIRST AMEND...) OF 09/27/2019
9/27/2019: Minute Order - MINUTE ORDER (COURT ORDER ON 09/18/2019, A DOCUMENT ENTITLED FIRST AMEND...)
9/5/2019: Notice - NOTICE NOTICE OF CONTINUANCE OF TRIAL FSC AND ALL RELATED DATES
7/29/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
6/13/2019: Request for Dismissal
9/18/2018: SUBSTITUTION OF ATTORNEY
9/18/2018: NOTICE OF CHANGE OF FIRM AND ADDRESS
7/16/2018: PROOF OF SERVICE OF SUMMONS
7/16/2018: PROOF OF SERVICE OF SUMMONS
Hearing08/31/2021 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing08/19/2021 at 10:00 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing05/07/2021 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
Docketat 10:30 AM in Department 29, Kristin S. Escalante, Presiding; Trial Setting Conference - HeldRead MoreRead Less
DocketMinute Order ( (Trial Setting Conference)); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 29, Kristin S. Escalante, Presiding; Non-Jury Trial ((1x5mos)) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:00 AM in Department 29, Kristin S. Escalante, Presiding; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 08:30 AM in Department 29, Kristin S. Escalante, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order Re: COVID-19;) of 04/27/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order Re: COVID-19;)); Filed by ClerkRead MoreRead Less
DocketSubstitution of AttorneyRead MoreRead Less
DocketSUBSTITUTION OF ATTORNEYRead MoreRead Less
DocketProof-Service/Summons; Filed by Emily Sue Moore (Plaintiff)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Emily Sue Moore (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketPLAINTIFFS' DEMAND FOR JURY RIALRead MoreRead Less
DocketComplaint; Filed by Emily Sue Moore (Plaintiff)Read MoreRead Less
Case Number: BC705209 Hearing Date: February 20, 2020 Dept: 29
Moore v. City of Beverly Hills et al.
Motion for Summary Judgment filed by the City of Beverly Hills on 11/27/2019 is DENIED. Defendant has not shown that it is entitled to judgment as a matter of law. Code Civ. Proc. § 437c, subd. (c) & (p)(2).
In this action, Plaintiff alleges that she was walking down the sidewalk when her shoe got stuck in a divot, which caused her to fall and to sustain injuries. Plaintiff asserts three causes of action against Defendant City of Beverly Hills: general negligence, premises liability and dangerous condition of public property. Defendant moves for summary judgment on the ground that the defect at issue was trivial as a matter of law.
In the moving papers, Defendant presents the following evidence.
In her deposition, Plaintiff testified that the incident occurred on April 20, 2017 at around 9:00 a.m. It was a sunny and beautiful day. She was walking to work on a route that she has walked on a daily basis for 14 years, from her home to the department store where she worked. Her workplace was less than a block away from her home. She has never fallen on the route prior to his incident and had never noticed the divot.
At the deposition, Plaintiff was shown a series of exhibits. Exhibit 4 depicted a front view of the department store’s parking entrance that appears to have been taken from across the street. A sliver of sidewalk is visible in the photograph. Plaintiff was asked to mark the location where she fell with a large X. She was also asked to mark the place where her blood had spattered with an oval. Plaintiff indicated that the place where she fell was on the sidewalk between a street lamp post on the green belt next to the street and a small staircase that formed the pedestrian entrance into the parking garage.
Plaintiff was shown Ex. 8, which is a close-up photograph of a divot in a concrete sidewalk. The photograph appears to have been taken from directly above. There is nothing about the photograph that places the divot in context; it is simply a close-up picture of a jagged divot in a concrete sidewalk panel. There is nothing about the photograph that indicates the scale of the divot; the depth is particularly difficult to discern from the photograph.
Plaintiff was shown this and other similar photographs of the same condition and was asked whether “they look like anything that you might have tripped over.” She responded: “This is about the size of my ballerina flat that got caught and I went flying forward. That was the shape I had been pointing at. So if it’s another one, but this is what the shape looked like where my foot caught.” She was asked to circle what you think you tripped over. She responded, “I didn’t trip over. I got caught, but this is about the size, I think, that my flat got caught in.” She circled the divot in the picture.
Later in the deposition, she was shown Ex. 8 again. The following fragmented exchange occurred:
“Q. So you’ve identified in Exhibit 8 that this divot is what you caught your foot in?
“A. But it’s better if – yes, that way.
“A. That’s what I remember it – that’s what I think it was –
“A. – because I remember the foot getting caught and flying forward.
“Q. Okay. So Exhibit 8 should be – the perspective should be with the two white dots on the top of the page. So looking --
“A. Oh, yes –
“Q. – at the top of the ---
“A. – yes –
“Q. – photo –
“A. --- yes.
“Q. – correct? Do you have any idea how long this condition in Ex. 8 existed?”
Defendant also presented a declaration of Robert Sahagun, the Street Maintenance Bureau Superintendent for the City of Beverly Hills. He went to the site and measured the “subject divot,” and recorded the measurements as approximately 1/32” in depth at its deepest point, 5” in length and 1-3/4” in width. He found the divot in question by taking Exhibit 8 to the site and matching the divot in the photograph to one that he found on site.
Mr. Sahagun reviewed the City’s records and found there are no records of prior complaints, service requests or work orders with respect to the divot and sidewalk area on the west side of Roxbury adjacent to Neiman Marcus in Beverly Hills.
Defendant also presented a declaration of Sharon L’Hereux Dressel, the Risk Manager for the City of Beverly Hills. After searching the relevant records, Ms. Dressel concluded that there were no prior tort claims or lawsuits arising from divots in the sidewalk in the area in which Plaintiff fell.
In opposition, Plaintiff presented her own declaration, in which she stated that in January 2020, she inspected the area of the fall and identified a second divot. She was not shown a picture of the second divot during her deposition. During her inspection, she viewed both Condition 1 (the divot depicted in Ex. 8) and Condition 2. Based on her physical inspection of the site, she does not believe that Condition 1 caused the fall.
Plaintiff suspects that the divot that caused her fall may have been repaired after her fall. She bases that conclusion on the fact that the color of the sidewalk appeared to be much whiter when she returned to work than it had been at the time of the fall and the fact that a coworker had told her that repairs had been made to the sidewalk during the time she was out from work recovering from her accident. Defendant objected to this portion of the declaration (though not on hearsay grounds). The Court’s rulings on the objections are set forth at the end of this order.
Plaintiff further stated that if condition that caused her fall still exists, it is much more likely that Condition 2 caused the fall instead of Condition 1 because of Condition 2’s depth, size and location relative to the blood spatter on the sidewalk that resulted from her fall.
Plaintiff denied that she had positively identified the condition in Exhibit 8 as the divot that caused her to fall.
Plaintiff also presented a declaration of Ramin Khodadadi, a handyman who was hired by Plaintiff to take photographs and measurements of Condition 2. Mr. Khodadadi stated that Condition 2 was roughly 1 to 2 years from the defect shown in Exhibit 8. The divot was approximately 3/4 of an inch in depth. Mr. Khodadadi provides photographs of Condition 2 that show the depth of the divot; the overall shape or location is not apparent from the photographs.
In reply, Defendant submitted deposition testimony of Mr. Sahagun, the Street Maintenance Bureau Superintendent. Mr. Sahagun testified that there had probably been “flat sawing” done in the area in 2010, 2012 or 2014. The discoloration in the sidewalk could have been due to the flat sawing.
He further testified that no divots in the area have been fixed or patched since the accident occurred.
Plaintiff asserts a claim under Government Code section 835. That section provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
The term “dangerous condition” is defined in Government Code section 830, subdivision (a) as “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Gov. Code § 830, subd. (a). “The existence of a dangerous condition is ordinarily a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one condition.” (Peterson v. San Francisco Comm. College Dist. (1984) 36 Cal. 3d 799, 810.)
Defendant contends that the defect at issue here is trivial as a matter of law. “The condition of the property involved [must] create a ‘substantial risk’ or injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility may be.” (Fredette v. City of Long Beach (1986) 187 Cal. App. 3d 122, 130 fn.5.) Under the trivial defect doctrine, a condition does not constitute a “dangerous condition” under section 830 where the condition creates a risk “of such a minor, trivial or insignificant nature in view of the surrounding circumstances [that] no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, 1104.)
“In appropriate cases,” the Court may determine “whether a given walkway defect was trivial as a matter of law.” (Id. at 1104-05.)
Defendant’s entire argument depends on the proposition that the divot reflected in Exhibit 8 to Plaintiff’s deposition was the divot that caused Plaintiff to fall. Defendant has not met its initial burden as the moving party to establish that fact. Defendant has presented no evidence linking the divot depicted in the divot to the location of the accident as identified by Plaintiff in Exhibit 4. Even if the Court can assume, based on the declaration of Mr. Sahagun, that the divot in Exhibit 8 was in the general area that Plaintiff identified, there is no evidence to establish that this is the only divot in the area. Indeed, in the moving papers, Defendant admits that there are other “divots at or about this ‘trip and fall’ site along the sidewalk.” (Defendant’s Memorandum of Points and Authorities at page 2, line 9).
Nor is Plaintiff’s testimony that the divot in the picture looks like the divot she tripped on a binding admission that it was that divot that caused her to fall. Viewing the evidence and all inferences in the light most favorable to Plaintiff, a jury could find that Plaintiff was confused by the scale in the photograph based on her testimony that the divot in Exhibit 8 looked like it was about the size of her ballerina flat. In addition, Plaintiff testified that her shoe got caught in the divot; that testimony is inconsistent with a divot that is less than 1/32 of an inch deep at the deepest point. Moreover, Plaintiff’s identification of the divot was based on her conclusion that it appeared to be the shape of the divot that she recalled. She was not provided with information about the measurement or location in the portions of the deposition that have been provided to the Court.
But even if Defendant’s evidence is sufficient to meet Defendant’s initial burden to establish that the divot depicted in Exhibit 8 was the divot that Plaintiff tripped on, Plaintiff’s evidence is sufficient to raise a triable issue of fact on this issue. Plaintiff was not shown pictures of other divots at the site in her deposition. She visited the site and identified another divot in the same area that Plaintiff concludes is more likely to be the one that caused the incident here.
Defendant argues that the Court should disregard Plaintiff’s declaration as a sham declaration. The sham declaration rule allows the Court to disregard a disregard a party’s declaration “only where it and the party's deposition testimony or discovery responses are contradictory and mutually exclusive” (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 862–863) or where the declaration contradicts “unequivocal admissions in discovery.” (Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 162; Minish v. Hanuman, 214 Cal. App. 4th 437, 460.) The Court does not find the declaration and deposition testimony to be sufficiently contradictory to allow the Court to conclude that the declaration is a sham.
Neither Plaintiff nor Defendant identifies the precise location of the divot in question by reference to the landmarks in Exhibit 4 to Plaintiff’s deposition or by any other landmark. Plaintiff vaguely states that Condition 2 is more likely to be the divot in question based on the blood spatter marks, but she provides no explanation for that conclusion. Plaintiff includes a photograph in the body of her brief that purports to show the relative location of the two divots, but there is no evidence that provides the foundation for that photograph. But Defendant provides no evidence linking the location of the divot in Exhibit 8 to Plaintiff’s testimony about where the accident occurred.
Viewing all the evidence presented in the light most favorable to Plaintiff, the Court cannot conclude, as a matter of law, that the divot depicted in Exhibit 8 is the divot that caused Plaintiff’s fall. Thus, even if Defendant could establish that that particular divot was a trivial condition, Defendant would not be entitled to judgment as a matter of law.
In the reply papers, Defendant argues that even if Condition 2 were the relevant defect, that defect would also be trivial as a matter of law. The Court does not consider that argument as it was raised for the first time in reply. A divot that is 3/4 of an inch deep is substantially different from a divot that is 1/32 of an inch deep. The moving papers did not raise whether a divot of 3/4 of an inch deep would be a trivial defect as a matter of law. The Court thus does not consider this argument.
Finally, Defendant argues that Plaintiff cannot prevail on the first and second causes of action for general negligence and premises liability. Although Defendant’s argument appears to be well taken, Defendant did not move for summary adjudication of these claims. Since Defendant has not established that it is entitled to judgment in its favor on the third cause of action for dangerous condition of public property, summary judgment cannot be granted. Because Defendant did not request summary adjudication, in the alternative, on the first and second causes of action, the Court cannot grant summary adjudication on those claims.
III. RULINGS ON OBJECTIONS TO EVIDENCE
Defendant’s objections to Plaintiff’s declaration
4. Sustained as to the first sentence. Overruled as to the second and third sentences. (There is no hearsay objection to the third sentence).
Defendant’s objections to Ramin Khodadadi’s declaration
5. OverruledMoving party is ordered to give notice.